Bilkis Bano Case: Supreme Court Refuses To Entertain Plea By 2 Convicts Challenging Setting Aside Of Gujarat Govt Remission

The Supreme Court today refused to entertain a plea filed by 2 convicts in the Bilkis Bano rape case challenging the January 8 judgment which set aside their remission granted by the Gujarat Government and directed them to surrender.

A bench of Justices Sanjiv Khanna and Sanjay Kumar heard the matter and ultimately dismissed the plea as withdrawn, while expressing that it cannot sit in appeal over a judgment rendered by a coorindate bench. "Under Article 32...we are not sitting in appeal...how is this maintainable? It's misconceived", said Justice Khanna.

Advocate Rishi Malhotra, for the petitioners, referred to the May 2022 judgment which held that the Gujarat Government was the competent authority to consider the remission. However, the bench pointed out that the second judgment rendered in January this year had considered the first judgment. It may be recalled that the second judgment declared that the first judgment was void as it was obtained by playing fraud on the Court.

To recap briefly, on January 8, the Supreme Court set aside the remission of 11 convicts sentenced to life imprisonment for multiple murders and gang rapes, including that of Bilkis Bano, during the 2002 communal riots in Gujarat. It was held that the State of Gujarat was not the "appropriate government" to decide the issue of remission as the trial was held in the State of Maharashtra.

Since the Gujarat Government was found to be incompetent, the remission orders were held to be invalid. Accordingly, the court directed the convicts, who were given premature release in August 2022, to surrender in prison within two weeks.

Challenging the January 8 judgment, the present plea was filed by convicts-Radheshyam Bhagwandas Shah @ Lala Vakil and Rajubhai Babulal Soni. The petitioners also sought relief of bail.

Background

On 3 March 2002, Bano, who was 21 years old and five months pregnant, was gang-raped in the Dahod district of Gujarat during the post-Godhra communal riots. Seven of her family members, including her three-year-old daughter were also killed by rioters. In 2008, after the trial was transferred to Maharashtra, a sessions court in Mumbai convicted the accused under Sections 302, and 376(2)(e)(g) read with Section 149 of the Indian Penal Code, 1860 and handed them a life sentence. In May 2017, a Bombay High Court bench headed by Justice VK Tahilramani upheld the conviction and life imprisonment of the 11 convicts. Two years later, the Supreme Court of India also directed the Gujarat government to pay Rs 50 lakhs as compensation to Bano as well as provide her with a government job and a house.

After almost 15 years in jail, one of the convicts, Radheshyam Shah approached the Gujarat High Court seeking remission of his sentence. However, the high court turned him back on the ground of the lack of jurisdiction. It held that the appropriate government to take a decision with respect to his remission was the Maharashtra government, and not the one in Gujarat. But, when the matter travelled in appeal to the apex court, a bench of Justices Ajay Rastogi and Vikram Nath held that the remission application had to be decided by the Gujarat government as the offence took place in the state. The bench also observed that the case was transferred to Maharashtra due to 'exceptional circumstances', only for the limited purpose of the trial, allowing the Gujarat government to consider the convicts' applications for remission.

Accordingly, under the remission policy which was in force at the time of their sentencing, the convicts were released by the state government last year, provoking widespread outrage and protest. It also led to a batch of petitions being filed before the top court, challenging the decision of the Gujarat government to grant the convicts premature release. Among the petitioners are Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. The top court issued notice in the first set of pleas on August 25 – ten days after the convicts were allowed to walk free – and agreed to take on board another batch on September 9.

Bilkis Bano approached the Supreme Court in a writ petition challenging the premature release of the 11 convicts. She also sought a review petition against the top court's judgment allowing the Gujarat Government to make a decision on the remission of the convicts, which was dismissed by the bench of Justices Ajay Rastogi and Vikram Nath.

After an 11-day-long hearing that began in August, a division bench of Justices BV Nagarathna and Ujjal Bhuyan reserved its judgment on October 12.

Case Title: RADHESHYAM BHAGWANDAS SHAH @ LALA VAKIL VS. UNION OF INDIA, DIARY NO. - 9861/2024